The Fair Sentencing Act of 2010 enacted by Congress was supposed to be just that - a way to equitably close the gap between the disparity of the law between sentences imposed on those convicted of crimes involving crack cocaine, and those convicted of crimes involving powder cocaine. However, because the law was not specifically made retroactive by Congress, the new sentencing guidelines have some judges in an uproar.
The new law significantly reduces the sentencing range for crack cocaine crimes, but only for those crimes committed after the law's effective date in August. Because Congress has not designated the statute as retroactive, defendants who committed crimes involving crack cocaine after August will be subjected to substantially lower sentences than those who did so before August, even if they are convicted and sentenced on the same day. This has the judiciary in a quandary, unwilling, in some cases, to sentence defendants based upon a sentencing scheme that has already been judged by Congress to be unfair. Roughly 30 federal court judges have already voiced this same concern.
In a written opinion, a judge in Massachusetts indicated a problem with sentencing a defendant under the prior sentencing scheme, which he stated was part of "a racially skewed system" and already identified as unfair by Congress and supposedly rectified. A federal appellate court panel agreed that the lack of retroactivity was unfair, finding that sentencing is based upon the fate of poor timing, but refused to use the new sentencing scheme retroactively.
The two senators who sponsored the law requested the Attorney General apply the law retroactively, and supported the ruling of a federal judge in Maine who did apply the law retroactively. The Maine judge advised he could not impose a sentence that Congress had already decided was not fair. The Justice Department appealed the sentence.
While many judges agree, some continue to impose the old law, such as a Philadelphia judge who admitted he didn't like using the old sentencing scheme, but that he had no choice until the U.S. Supreme Court said otherwise.
There are many complexities and possible defenses when someone is charged with a drug crime. It is important for individuals arrested or accused of a drug crime to immediately seek the advice of an experienced criminal attorney who can advocate on the individual's behalf to make sure that his or her rights are protected, that the law is followed, and that all appropriate defenses are raised.